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Courts have duty to monitor projects

South China Morning Post – oct. 5, 2011

The government’s approach to assessing the environmental impact of major infrastructure projects has survived a legal challenge. The Court of Appeal last week overturned a lower court’s decision against the government concerning the Hong Kong-Zhuhai-Macau bridge. The court felt it should not interfere with what is essentially a matter of professional judgment to be exercised by the Director of Environmental Protection.

This decision removes uncertainties surrounding construction of the much-delayed bridge and other development plans held up by the case. The project will cost an extra HK$6.5 billion as a result of the delay and, taken together with other projects, it is clear the legal action caused a substantial economic loss. There are those who argue that the case should never have been brought, especially as the applicant – who said she was worried the noise from construction would aggravate her poor health – said she didn’t really understand the issues and had been persuaded by other people to go ahead.

But the courts have a duty to ensure the government is operating lawfully and there was clearly sufficient merit in the case for it to proceed. The proceedings provided a useful examination of the system. Lessons should be learned. There is a need to review the assessment mechanism. The High Court ruled that the director should not approve the impact assessment reports in the absence of a separate analysis of likely environmental conditions if the projects were not built. The appeal court did not dwell on the merits of such a standalone study but ruled it was not required by the law.

The victory should not stop the government improving the system. The perceived inadequacies have long been a matter of concern among those who care about the environment. Now that the court case is over, there is no reason why there should not be a public debate. It is a good opportunity to bring environmental impact assessment studies in line with international standards.

There are a number of big infrastructure projects pending. Putting in place a mechanism that strikes a balance between development and environmental protection is important. The impact on public health and the environment should be reduced to a minimum. To do so, a credible and effective assessment mechanism is essential.

Like it or not, other infrastructure projects are likely to face legal challenges from time to time. Residents who have legitimate concerns about the harmful impact they may have are entitled to take their case to the court. It will be up to the judges to decide if there is any legal merit. But officials have to ensure that the projects in the pipeline, such as the proposed incinerator in Shek Kwu Chau and the Sha Tin to Central railway, proceed on solid foundations.

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